Oh, great. The opinion is an atrocity, classic “hack originalism for dummies,” relying heavily on the fact that recess appointments during nominal sessions of the Senate are a relatively recent phenomenon (although there’s precedent going back to 1867, and “[t]he last five Presidents have all made appointments during intrasession recesses of fourteen days or fewer”), without considering that the Senate systematically refusing to consider presidential nominees is also a contemporary phenomenon. The “pro forma” sessions the D.C. Circuit sees as breaking the constitutional “Recess” are intended solely to prevent the president from exercising the recess appointment power, the very check that the framers included to counteract the possibility that the Senate would obstruct the functioning of government by serially refusing to consider nominees. Separation of powers analysis that refuses to acknowledge how the government actually functions provides a clinic in the limitations of law-office history.

And the hackishness is also obvious — one branch is allowed to push the constitutional envelope as far as it wants while the other is unable to respond using the tools the framers explicitly made available because 18th century presidents didn’t have to use this power in the same way because they had no reason to. Loose construction for me, implausibly arid formalism for thee, and it defeats the purpose of the recess power appointment, which if it means anything should allow the president to stop the minority party in one house of Congress from thwarting the functioning of regulatory bodies. And — what are the odds? — it just happens that the result coincides with the policy preferences of the Republican author of the opinion, who considers the 20th century regulatory state unconstitutional. The implications of this decision are far-reaching, as it would invalidate the good decisions the NLRB has made during this period and (because of a recent Supreme Court decision requiring a quorum of three) effectively stop the NLRB from operating until the minority party in the Senate chooses to allow it do so.

…Heavens to betsy, somebody needs a fainting couch because I called someone a “hack”! I have no doubt about the good faith of this attempt to police the Civility of American Political Discourse on the part of a website founded by someone who wrote a work of anti-history arguing that it was not merely constitutional but desirable to send people to concentration camps based solely on their race. But at least she would never call someone a “hack“!

Comments (176)

the recess appointment power, the very check that the framers included to counteract the possibility that the Senate would obstruct the functioning of government by serially refusing to consider nominees

Is this really true? My understanding was that the recess appointment power had to do with the fact that the Senate was not in session for about half the time – so the recess appointments power was necessary to staff the government when congress wasn’t in session. It had nothing to do with the idea that the Senate would refuse to consider nominees.

That’s a way of putting it that rather elides the distinction between “the Senate isn’t confirming nominees because it isn’t in session,” and “the Senate has purposefully chosen not to confirm nominees.” The point was never to get around the Senate’s advise and consent power.

Except that, either, way, the Senate isn’t actually in session in any meaningful sense. I’d also love to see some evidence for your assumption that the “advise and consent” power was intended to facilitate the serial rejection of nominees by the minority party.

I’d also love to see some evidence for your assumption that the “advise and consent” power was intended to facilitate the serial rejection of nominees by the minority party.

Well, it surely wasn’t. Ideologically coherent parties have broken the Constitution; I think we all know that. And I have no problem with Obama using the recess appointment power to bypass the obstruction; in a system as status quo-biased as ours, you have to use whatever kludge is available to get things done. But that’s neither here nor there in terms of the constitutionality of using recess appointments in this way. That the system has completely broken does not necessarily mean that any given fix is constitutional, or that a constitutional fix even exists.

But, in this case, a perfectly constitutional fix exists: the recess appointment power. Again, it’s ridiculous to give a broad, deferential construction of the advise and consent power but a ludicrously narrow reading of the recess appointment power. You can’t have it both ways.

You can indeed have it both ways if you are a conservative. Such actions are perfectly legal when performed by Republican presidents and clearly unconstitutional when Democratic presidents do them. Makes perfect sense.

Obviously it wasn’t intended for that, but the Constitution basically gives the Senate the right to do what it wants with nominees.

And I actually agree that recess appointments during pro forma sessions are appropriate, but it is an exploitation of what is basically a loophole. The original reason for recess appointments no longer exists.

The position of the Obama administration with regard to recess appointments, rejected by this court, does not turn on the fact that some nominees have been filibustered, or that nominees were serially filibustered. It would apply equally if the nominees were rejected 100-0 by the Senate, or indeed if the administration never sent any nominations to the Senate at all.

That the Senate has chosen to empower a minority to block nominees has no bearing on the meaning of the recess appointment clause.

As for the Senate not being “in session in any meaningful sense,” as the court pointed out, the extension of the payroll tax cut was passed during one of these things you’re pretending aren’t sessions.

…in which decision the court pointed out that the pro forma sessions were, by explicit design, not going to conduct any business. This was overridden, explicitly once more, in the case of the payroll tax bill.

So, was the Senate available to perform its advise and consent functions? No, by their own decision, they were not. That’s the point of judgement on which the thing turns, not the constitutionality or otherwise of intrasession recess appts.

I agree — the filibuster of executive branch nominees is bad but not unconstitutional. For the same reason, the president should be able to make recess appointments when the Senate is not meaningfully in session.

Yes. My original point, you’ll see if you read my first comment, was to object to your characterization of the recess appointments power as “the very check that the framers included” to stop Senate obstructionism. That’s not true – it was not supposed to be a check on the Senate, just a way to staff the government while the Senate wasn’t in session to approve nominees.

That I disagree with this characterization doesn’t mean I disagree with the rest of your post.

I’m sure glad the Senate didn’t reform the filibuster rules for Circuit and SCOTUS appointments. Heaven forbid a two-term Democratic presidency make a significant mark on the ideological character of the federal judiciary.

Which is to say, I think there’s a reasonable argument that the recess appointments power has basically been obsolete since the 20th Amendment or so. And this is an area where we have pretty pure hypocrisy on both sides – when Bush was appointing John Bolton, etc., by recess appointments, Democrats screamed about this being a misuse of the recess appointment power.

hink there’s a reasonable argument that the recess appointments power has basically been obsolete since the 20th Amendment or so

This is just bizarre. Not only is it not obsolete, given the rise of the filibuster it’s more important than ever. To construe the recess appointment powers in ways that prevent the president form responding from attempts (by the minority party!) to stop the functioning of the executive branch is utterly perverse.

Democrats screamed about this being a misuse of the recess appointment power.

That’s nice. It’s still not unconstitutional, and no Democratic judge ruled that it was, so the hypocrisy is apparently not symmetrical.

Yeah, courts actually ruling it unconstitutional isn’t symmetrical. But it’s a pretty clear case where everyone’s positions have flipped 180 degrees from where they were 7 years ago.

And, for the record, I disagree with this court ruling – I think Obama was within his rights to make these recess appointments. I just don’t think that this use of the power can possibly be justified as “the very check that the framers included to counteract the possibility that the Senate would obstruct the functioning of government by serially refusing to consider nominees.” That is not why they included it. They included it because congress was only in session for six months of the year, which is no longer true.

courts actually ruling it unconstitutional isn’t symmetrical. But it’s a pretty clear case where everyone’s positions have flipped 180 degrees from where they were 7 years ago.

Well, “complaining” and “ruling it unconstitutional” are not, in fact, remotely equivalent. I don’t care if Republicans want to engage in hypocritical complaining; I care if hack judges try to read their hypocrisy-of-the-moment into the Constitution.

Fair enough. These judges do seem to be hacks. The only point I was making was to object to your characterization of Obama’s use of the appointments power as specifically envisioned in the Constitution.

This is just bizarre. Not only is it not obsolete, given the rise of the filibuster it’s more important than ever. To construe the recess appointment powers in ways that prevent the president form responding from attempts (by the minority party!) to stop the functioning of the executive branch is utterly perverse.

See, this is the problem. You don’t understand what hackery in law is. What you’re proposing here is hackery: construing the constitution to mean what you think would be beneficial to your side, rather than what it actually means. You don’t present a single legal argument in support of your position; you just don’t like the policy outcome.

Also, the opinion did not “rely heavily” on the fact that recess appointments were a recent phenomenon. It relied heavily on textual analysis. It discussed the recency issue in order to reject the idea that the use of the recess power was some long-established tradition going back to the founding. It’s not that it is used more now than in the 18th century; it’s that it was never used before 1867, and only three times before 1947.

From my reading, it relied on textual analysis of selected individual words, divorced from their literary or societal contexts. It was, like the Heller decision on which it relied so much, incredibly atomistic. And thus of no great use.

And, once more, it used at case at hand to overturn longstanding Constitutional interpretations of other branches of govt, despite the fact that a broad judgement of the constitutionality of intrasession recess appts was not required by the case.

Using flimsy linguistic arguments to reshape the historic purview of a separate branch of govt is hackery.

Also IIRC Republicans were basically holding up all nominations to the NLRB regardless of who they were (and for sure in the case of the CFPB). Essentially they wanted to use nominations as leverage to neuter each body. The Democrats did not do similar hostage-taking with Bolton, who they objected to personally as being batshit insane.

This is true, but isn’t it more a difference in degree than a difference in kind? When Bush appointed Bolton, I believe he used the pretext that Democrats weren’t allowing him an up or down vote.

Again, I don’t really think what Obama did was unconstitutional, I just don’t think we should delude ourselves that it was simply an application of a long-standing constitutional principle. It is a workaround.

“This is true, but isn’t it more a difference in degree than a difference in kind? ”

Huh? Blocking one particular nominee because he’s uniquely atrocious is only a difference of degree from blocking any and all nominees to a regulatory agency in an effort to keep said agency from functioning properly?

Yeah, call me crazy, but I don’t think the purpose of the advise and consent function was to allow the minority party of the Senate to prevent the president from staffing executive branch positions entirely.

You are correct regarding Cordray and the CFPB. But there was no GOP obstruction regarding the illegal NLRB appointments. Just prior to Obama’s action, he had just recently sent the nominations over to the Senate, which was very late during the 111th Congress; the Senate committee handling the confirmation hadn’t even scheduled hearings yet, nor had the Senate even come close to schedule a vote. So it wasn’t that Republicans blocked any of these appointments or even indicated they would do so. Obama jumped the gun.

But I don’t recall a lawsuit to stop him from assuming his post. Appointing a man who said the UN should be abolished as U.S. Ambassador to the UN was ridiculous even for the Bush Maladministration, but IIRC he actually occupied that post.

More to the point, Bush appointed Bolton in a recess appointment because he knew that his obvious unsuitability for the job meant that he couldn’t get him into a post where nominees were typically confirmed unanimously. It was not because a faction of the Senate had decided that there would simply be no UN ambassador.

In short, Bush did it as part of the GOP trend to smash norms to get what they want. The norm here being “Not appointing self-evident whackjobs to (very) important ambassadorial posts.” Obama’s recess appointment was a response to the GOP breaking another norm of “The Senate will actually vote on obviously qualified presidential appointments that require their confirmation so the government can work.” GWB got Roberts and Alito on SCOTUS despite how horrible they predictably were because the norm was that you let the nominee be confirmed if he was qualified and not transparently awful. The weren’t filibustered and were they got confirmed.

Yeah, I suppose this is fair. Republicans have gone further. But I don’t think the comparison is totally unfair. There’s a ton of juicy quotes from Democratic senators condemning Bush for using recess appointments, and certainly going up to the edge of saying they were unconstitutional. The Republican Party has nicely compiled them here.

So, recognized. Now what’s your point about the hypocrisy? Are you just going to keep insisting that we apologize for anything inconsistent that’s ever been said by people in our party who are not us? Or are you saying that those statements by Democratic Senators are actually to blame for the current Republican behavior?

I guess I’m saying that there aren’t really any principles at stake here. The ultimate problem is that the Senate is totally dysfunctional. Recess appointments aren’t really the answer to that – or, at least, are a very inadequate one.

It had nothing to do with the idea that the Senate would refuse to consider nominees.

That’s correct. As the DC court said in its opinion, “The Framers emphasized that the recess appointment power served only as a stopgap for times when the Senate was unable to provide advice and consent.”

Well, I’m certain no one had standing to challenge Bolton’s ambassadorial appointment. If Bush had recess appointed a judge to the D.C. Circuit, I suppose we could have found out for sure, but I don’t believe he did. I don’t know Sentelle and the others well enough to judge whether they’re authentic, non-partisan originalists like Thomas or more in the mode of Scalia.

Look at what Thomas is actually up to. He has very strong ideological beliefs about the proper way to interpret the Constitution, and he applies them regardless of whose ox is getting gored. I don’t agree with the beliefs, but he at least has the virtue of consistency.

Just check out Gonzalez v. Oregon for that counterpart, the CSA can suddenly reach prescriptions within the states. Or the staggering lack of originalism in any of his affirmative action opinions. I agree he is more likely to be a “faithful” “originalist,” if these terms had any objective content that is, but it hardly makes him non-ideological.

This is why I think the “neoconfederate” angle is a bit off. This is just partisan hackery. There is no consistent judicial philosophical commitment (however idiotic or vile) here. It’s just like John Yoo, who has a very constricted vision of presidential powers whenever a Democrat is in the White House, but had a totally expansive view of such powers when a Republican was President.

Yes, it’s a shame the court upheld the practice when the Democrats sued the Republicans over it. Oh, wait a minute… The Democrats never sued so there was no occasion for a court to make a decision on it. Silly Democrats.

My recollection is that at the time Obama made these appointments, the Republicans were complaining that Obama had presented some proposal to them while the Senate was in recess. I don’t remember what it was, exactly, though.

That doctrine is much narrower than the popular imagination makes it. Basically, if it’s a matter of internal procedure of one of the branches–how the Senate runs itself, how the President runs the Executive Office–it’s a political question. If it’s foreign policy, it’s probably a political question, or maybe you lack standing, but in any case they won’t decide it. Otherwise, interbranch relations are very much subject to judicial review–see, for example, Chadha.

Judge William Pryor would apparently (see Volokh Conspiracy) be illegitimate under their reasoning. Decent chance this will lose en banc. That Charles Savage article (unsurprisingy) is very informative. It ultimately is a balancing of options and a changing environment. It is that much harder to confirm anyone these days, the Dems actually passed some major policy that did not occur in Clinton years and so forth. OTOH, something is lost in the deal.

If the court today is holding that everything the NLRB has done since the recess appointments is invalid, the reasoning should apply to Judge Pryor as well. His decisions wouldn’t be vacated but parties to his decisions should be able to argue that the decisions were made without authority. Should make some interesting appeals especially of criminal convictions.

Obviously the gov should stress the Pryor angle in requesting en banc review.

His circuit dealt with a challenge to his appointment (by a litigant in a case he ruled upon) & ruled a different way than the D.C. Court. The Think Progress link covers the case. His case can be differentiated because he’s a judge, I guess, but the breadth of the ruling here seems to cover him too.

The interesting question is whether litigants who never raised this argument in their original appeals or petitions for rehearing from his decisions could raise it now. (Any litigant who raised it and had it decided the other way would presumably be barred from re-litigating it by the law of the case doctrine.) Remember, he was only recess-appointed from 2004–2006. Normally, finality rules would bar a court from re-opening those cases now, but I suppose you could make an argument that having an illegally-appointed judge decide your case goes to the court’s jurisdiction.

It seems to me that if the Senate fails and/or refuses to vote on a presidential nominee within a reasonable time, it should be held to have abandoned and waived it’s power to “advise and concent.” Further, these “pro-forma,” sessions, intended solely to avoid a recess appointment, are not provided for in the Constitution, and, therefore, arguably, not a valid session of the Senate. Rather, if the Senate fails to have a Constitutional quorum of 51 during normal business days and hours, it should be held to be in recess and the president free to make a recess appointment.

Somehow “Pro Forma” Senate sessions that exist only to stop a recess appointment are constitutional – even though they just started up – but recess appointments aren’t because they’re not used often during the Founder’s time?

How much should we blame law schools for some of the ridiculous shit conservative lawyers/judges come up with? With a lot of people (probably most) they are bringing their own biases to the table and taking what they learn and filtering it through that lens. Frankly, I’m not sure how you get around that. It’s just a fact of life, which is why the idea that judges are “impartial” or not “partisan” is a bit ridiculous.

But shouldn’t part of law school be trying to actively challenge those biases? Or does this happen and it just doesn’t matter?

The timing of this decision, 24 hours on the heels of Dem capitulation on the filibuster, is ridiculous. I have an incredibly strong urge to call up Harry Reid’s office and just curse into the phone until they hang up on me.

Actually i think the government will first file a request for hearing en banc and only go to SCOTUS after that (if en banc is refused or if it is granted and the full court upholds the panel decision).

I’m not sure they’re going to get an en banc hearing. I would guess that the 3 Dem appointees on the DC Cir would vote in favor of a rehearing, and maybe Griffith (who only concurred in part), but how Kavanaugh and Brown would go is less clear.

From a standpoint of “okay, what’s the quickest legitimate way around this insanity?” you damn well request an en banc hearing. This sort of bullshit is what en banc was made for; a way of a circuit or district to internally get its own house in order by slapping down crazy minorities operating within it.

But from a standpoint of “okay, this is a big national thing now. What do we want to happen to send a message?” they may decide, fuck it, let’s go straight to the Supremes.

I know, I know. We’re all cynical about the Supremes, and rightly so. But c’mon. You think Alito, Scalia, and especially Roberts are gonna take away future Republicans ability to appoint the John Bolton’s of the world? Not gonna happen.

Asking for en banc review gives two shots at getting the decision overturned, not one. If you lose en banc, you can always go to the SCOTUS. I dont know how the Supremes will rule but it doesn’t make any sense to give up the chance that the DCs will grant en banc and reverse

Brett Kavanaugh? Major role in drafting the Starr Report, investigated the suicide of Vince Foster, was part of the 2000 Florida recount team … Yeah, it’s a real mystery how he might come down on a load of flagrantly partisan horseshit that damages a Democratic president. And Janice Rogers Brown makes Sentelle look like William J. Brennan when it comes to being a batshit far-right ideologue who thinks child labor laws are unconstitutional.

Jeebus, but the D.C. Circuit is a cesspool full of people who shouldn’t have ever been allowed to judge so much as a drunken square dance contest. Thank goodness Senate Dems kept their powder dry, and thank goodness that Caitlin Halligan will be able to be voted on slightly more quickly, if only Senate Republicans will stop repeatedly filibustering her nomination.

I do agree with Richard that the DOJ make the attempt for en banc nevertheless.

I’m fairly certain that this case will be appealed to the Supreme Court whether the DC Circuit grants an en banc rehearing, or not, and, if so, whether the en banc court upholds the panel opinion, or not.

The decision came in an otherwise routine labor relations dispute, involving a soft-drink bottling company in Yakima, Washington, named Noel Canning, and its dealings with Teamsters Union Local 760. The Board had ruled, with the three temporary appointments joining two others already sitting, in favor of the union complaint that Noel’s management had refused to implement an agreement they had on contract terms. Noel Canning appealed the ruling to the D.C. Circuit Court, and in the process raised for the first time the question of the constitutionality of the three members’ temporary appointments.

Correct me if I’m wrong, but didn’t the GOP also hold up Obama’s two appointees (of three vacancies) to the very same court that issued this ruling? If they had been in place, and the court had voted down ideological lines, it would have been 5-5.

Too bad that by what I’m sure is mere coincidence, the court issued its decision right after the intersession recess ended.

(Although given the majority holding that it requires a Harmonic Convergence of two events to bring the recess appointment power into play — (1) a “true” intersession recess, and (2) a vacancy arising during that recess (i.e., no filling pre-existing vacancies — this panel wouldn’t find such appointments constitutional.

“years ago”? heck, “years ago” certain sorts thought the PPACA obviously constitutional. Things change over the years, including the nature of the system in place, which is important to determine the appropriate balance in the checks and balances in place. Given current realities here, Tribe supported the policy.

Remember, if a conservative takes a position you don’t like, he’s by definition a partisan hack and can be ignored. If a liberal also takes that position, well, he’s just an eventheliberal and can be ignored. The important thing is never to be swayed in your conclusions.

Jesus Christ. Reading Part IV.A of this opinion is like reading the Da Vinci Code. You can just picture Sentelle sitting alone in his darkened office, late at night, frantically circling random words in the Constitution so that the lines between them form occult symbols from which he alone can divine the location of the Holy Grail.

I eagerly await a follow-up case in which the D.C. Circuit holds that there has been no Speaker of the House since the 18th century, since the House has neglected to “chuse” its speakers with a “u.”

… whilst wearing a powdered wig. (Despite Sentelle’s Fred Thompson drawl, I’ve always thought he needed such a wig to complete his rather Dickensian look and often pictured one on him in my mind’s eye. Deucedly distracting during oral argument.

[…] Constitution when he made 3 recess appointments to the National Labor Relations Board (which made Lawyers, Guns, and Money’s Scott Lemieux go barking moonbat with his headline). Yet, another was just as important but slid […]

[…] Constitution when he made 3 recess appointments to the National Labor Relations Board (which made Lawyers, Guns, and Money’s Scott Lemieux go barking moonbat with his headline). Yet, another was just as important but slid […]

[…] Constitution when he made 3 recess appointments to the National Labor Relations Board (which made Lawyers, Guns, and Money’s Scott Lemieux go barking moonbat with his headline). Yet, another was just as important but slid […]

[…] since Antonin Scalia picked the previous president. For precise legal analysis, I’ll leave it to Scott at LG&M to explain. This, children, is what you get when you operate politically under the theory that […]

So I guess this makes Larry Tribe and the late Senator Ted Kennedy hacks too because they filed legal briefs making these same arguments against a Bush recess appointment. I’m sure you had lots of outrage over that too. And what about Harry Reid, who came up with the idea of keeping the Senate in session to prevent recess appointments?

You should also be embarrassed to link to Milhauser’s hyperventilating on the Brown concurrence in Hein Hettinga, as this opinion nowhere says what Milhauser attributes to it. The opinion laments the low-level of scrutiny given to laws infringing upon economic liberty, but never suggests that all such infringements would be precluded — nor do the older precedents and opinions to which it favorably refers. This is the sort of thing that would earn one of my students an exceedingly poor grade. As an academic, I would think you’d have higher standards.

Kennedy might have acted like a politician, possibly using a weak argument (if he relied on originalist opinions of the sort used here, yes, that would be pretty rich). News at 11!

Don’t know if the value of all the links here (especially how one comments on some single opinion that Scott might not be fully knowledgeable about) but the breadth of this decision is striking & if advocates used similar arguments in the past, that doesn’t support JUDGES ruling that way. If you are saying that the judges here are political advocates like Kennedy & honestly with respect Tribe has a bit of that too, I don’t know if you are doing them any favors.

Reid hasn’t gotten much love around here lately but yes his move here was questionable. As some comments to your posts suggest, you might not want to talk about “standards” regarding posts that might be a bit too one-sided per the passion of the moment.

Kennedy and Tribe made their arguments in legal briefs trying to get courts to invalidate a Bush recess appointment (working with Tom Goldstein of SCOTUSBlog and Georgetown’s Marty Lederman, who subsequently served in the Obama Administration). The D.C. Circuit opinion is unquestionably broader than necessary to reach its conclusion, but it’s interpretation is largely in line with the conclusions of most originalist scholars who have looked at the question — and who, incidentally, did their research long before Obama was President, let alone before he considered making any recess appointments.

Can you try responding to my point, especially since I realize it was a lawsuit? Kennedy and probably Tribe SELECTIVELY used legal arguments there guided by political ends as an advocate.

If Kennedy actually used the same originalist arguments in the legal briefs, he was obviously selectively being an advocate given his stance on originalism generally. Again, if this is the standard, it is faint praise to put the judges on the same level.

If any of the bunch here “unquestionably broader than necessary to reach its conclusion” and relied on the same logic, they would have been wrong. As to what “originalist” scholars would decide, especially given practice as far back as the early 19th Century, I don’t fully know, though the term has so many permutations, I’m not fully sure how it is being used.

Finally, putting aside that as applied to JUDGES, lifetime appointments, the argument made then had more force, the specific situation here with the with respect phony sessions (yes, based on neutral principles that a judge should rely on, not politics, Reid’s gimmick was phony) in question was not in place yet to my knowledge when Kennedy joined the lawsuit.

On the link, sure he should be embarrassed, as he uses it to substantiate a striking claim — that Sentelle’s a “neo-confederate judge” who would invalidate the entire NLRB and who is just pursuing his policy preferences. Those are strong claims, and I would expect an academic not to make such claims without more substantial support.

If Ted Kennedy filed this same suit before – why wasn’t this ruling reached before?

What’s the difference between now and then?

Let me take a stab – who was President then?

It would appear you invalidated your whole argument of this being non-partisan by indicating that when the Democrat took it to court to stop a Republican, it got nowhere. Yet when a Republican takes it to court against a Democrat, it’s suddenly an obvious originalists answer.

The relevance of the originalist scholarship is that it points to the correct outcome outside of the context of a specific political dispute. That is, when people weren’t worried about which party would benefit, most read the recess appointments clause in ways that would have rendered these appointments invalid (a point liberals like Akhil Amar acknowledged when these appointments were first made).

As for their alleged selectivity, even most non-originalists concede that the specific structural and procedural provisions should be read literally (e.g. the age limit for Presidents) which is why many liberal non-originalist scholars have expressed concerns about intra-session recess appointments. In any event, Kennedy was the client, not the attorney, and the point of having prominent legal scholars on the brief was to represent this as a proper reading of the constitution, not simply a matter of advocacy.

Not sure how the alleged objection to recess appointments applies more strongly to judges — there’s no textual basis for that, and recess appointments expire of their own accord if the appointee is not subsequently confirmed. If anything, some of the NLRB appointments were particularly egregious because the appointees had not been blocked yet.

But you’re missing his poing. He is talking about “originalist scholarship” which has no necessary connection to what anyone might have thought in 1832. This is called Thinking Like A Lawyer (subcategory: hiding the ball). Perhaps you should do come CLEs on modern conservative arguments.

It’s related to another technique Adler uses:

So I guess this makes Larry Tribe and the late Senator Ted Kennedy hacks too because ..

Obviously if Kennedy and Tribe aren’t hacks then the court decided this case correctly. That’s logical – the conclusion follows the premise as inexorably as night follows orange. This is the technique called Thinking Like a Lawyer: Introduce a Distraction.

Uh, no. It does not reject “precedents” going back to 1823. It rejects the Attorney General’s argument in 1823. The fact that a presidential administration took the position that it had the power to do something is hardly evidence that the constitution gives it that power. I mean, John Yoo said lots of things about what the president could do, but you wouldn’t call any of those things “precedents,” would you? After the obligatory two-minute hate directed at Yoo, you would argue that just because the Bush administration claimed it had a power should have no bearing on whether a court held that to be constitutional.

Moreover, the only issue from the 1823 argument was the second issue addressed by the court: whether the recess appointment clause applies to vacancies that arise pre-recess but happen to continue to exist during the recess. The main part of last week’s opinion — whether the recess appointment clause applies during intrasession adjournments — was not even considered in 1823.

Everyone please note that this is coming from someone who blogs at the Volokh Conspiracy.

Still, it’s nice to know that if a precedent from 1823 isn’t “originalist” enough, presumably Marbury v. Madison is unconstitutional, too. Because then the President can simply ignore this attempt by the D.C Curcuit to apply judicial review to his appointment power.

As I say above, I’m not at all surprised that senators would try to push the envelope and advance the power of their institution. Fortunately, no liberal judge accepted their argument and wrote their hypocrisy-of-the-moment into the Constitution. And, yes, I generally am not outraged by briefs that are inconsequential.

[…] since Antonin Scalia picked the previous president. For precise legal analysis, I’ll leave it to Scott at LGM to explain. This, children, is what you get when you operate politically under the theory that […]

[…] Constitution when he made 3 recess appointments to the National Labor Relations Board (which made Lawyers, Guns, and Money’s Scott Lemieux go barking moonbat with his headline). Yet, another was just as important but slid […]

[…] best pieces, a brief one by Scott Lemieux, of the blog, Lawyers, Guns, and Money. It’s called Neoconfederate Judges Rule Recess Appointments Unconstitutional. I recommend it. Thanks to the reporting of Robert Draper and Frontline we know that REPUBs began […]

Scott, an excellent piece on the onerous ruling. David Sentelle is a ghost of an Iran-Contra & Whitewater. And I loved Charlie Pierce’s piece, which you linked to. I wrote on this too, from the POV of having been Susan MacDougal’s book editor and publisher in 2000, at my blog The Great Gray Bridge: http://bit.ly/10XlXTv